An assortment of all things interesting (and possibly useless) in the legal profession

Friday, April 29, 2011

Players File Opposition to Owners' Request for Stay (UPDATED)

Note: UpdateTwo Three updates below.

The players have just filed their opposition to the owners' request for a stay in the Eighth Circuit Court of Appeals. Their brief is 30 pages long -- over the Eighth Circuit's page limit, so they had to file a motion earlier today asking for permission to go over -- but it makes the same arguments we've seen before. Most critically, they hit on the point that the NFL will suffer no harm in the absence of a stay. To get a stay of the injunction, the NFL has to show that it will suffer "irreparable harm". The players say that, because the teams reopened for business today, and intend to issue rules for player transactions soon ("likely tomorrow", the NFL said yesterday), the NFL is well equipped to resume business immediately. The fact that it can do so, in the players' view, demonstrates the lack of irreparable harm.

(The owners' argument, from their brief yesterday, is that there are legal impediments to lifting the lockout and that, if they (the owners) "produce their collective product", they face the risk of further antitrust liability.)

The new brief doesn't raise any points we weren't expecting. However, I was struck by the fact that it never mentions the word "contempt". (And, thus far, no contempt filings at the district court.) This suggests that the players are backing off of their hard line, especially in light of the fact that the Eighth Circuit has not (yet) issued a temporary stay, which means that League operations can (and in the players' view must) resume.

Check back later for some more analysis.

UPDATE: Some outlets are reporting that the stay has been granted. This is incorrect, as of 2:10 p.m. Eastern time. The Eighth Circuit granted the players' motion to file a brief in excess of the page limits. The Eighth Circuit has not granted a stay.

UPDATE #2 (4:15 p.m.): Still no stay. The earlier reports of a stay being granted have been retracted. The owners have asked for permission to file a 15-page reply (instead of the usual 10) on Monday morning, but no other substantive activity on the dockets, either at the Eighth Circuit or the District Court.

UPDATE #3 (6:00 p.m.): Still no stay (or contempt motions), although the owners' motion to file an overlength brief was allowed.

There is a fair chance that the Court will grant a temporary stay. But that's because the temporary stay would only be in place a few days, until the Court rules on the actual stay motion (some time early next week). However, that doesn't go to your "severe harm" question. The law requires that the harm be "irreparable" -- irreversible. If the harm to the league is, "We have to work hard to get the doors open when we are preoccupied with the draft", that probably doesn't pass muster.